In Part I of this two-part column, I examined the fate of a current California legislative initiative intended to expand access rights to state-sponsored research. While the bill continues to move through the legislature, my previous post discusses how the publishers lobby swiftly managed to amend the bill, eliminating its six-month reduction of the twelve-month embargo period (allowed publishers to delay providing open access after publication). While attesting to their support for open access, in principle, the publishers held that reducing (by six months) the public’s wait to see this research violated their property rights and threatened the future of science.

The experience left me all the more convinced that insofar as intellectual property law is being used to undermine open access, which has broad support in principle, it is time to explore how to reform the law to advance what is in the best interest of all parties. While it will take considerably more space to set out the case for tailoring the law to better serve research and scholarship in the digital era, allow me to set out some of the reasons for undertaking this legal project at this point, following up on a suggestion I have made more than once in the past.

One historic inspiration for proposing this legal reform is found in the original intent of intellectual property law. The legal reform that I wish to consider would be restorative, following on the Statute of Anne 1710’s identification of itself as “An act for the encouragement of learning.” It would similarly seek to reinstate, as the U.S. constitution has it, the law’s ability “to promote the progress of science and useful arts.” The question behind this reform is whether and how this earlier intent can be more effectively served then it is now in the case of learning, science, and the useful arts.

What makes this the moment to engage with this reform is that support, at least in principle, for open access can be heard coming from not only research libraries, but public and private research funding agencies, as well as commercial and non-profit publishers, including scholarly societies. For the last decade, we have been relying on a patchwork of funder open access policies, institutional open access mandates, publishers’ hybrid journals, and, more recently, a smattering of national library-publisher agreements.

At the same time, copyright law today – insofar as it is designed to protect an author’s right to restrict the work’s reproduction for more than a lifetime – undermines what is now the agreed-upon ideal state of this body of work in the digital era. The law is not providing, as was intended, an incentive for researchers to publish; as it leads by default for many decades of restricted access, it is not serving the best interests of the public or of learning and knowledge broadly conceived. There are no means within the law of recognizing that research and scholarship can and should be distinguished from other forms of intellectual property

Now, it is true that Canadian intellectual property law does grant a Fair Dealing exception to copyright “for the purpose of research,” much as happens in other jurisdictions. Yet this assumes that the researcher has access to the materials that she is then allowed, by this exception, to use, but only if it does not adversely affect the market exploitation of the work. The law, in protecting this opportunity to exploit this work, limits the application of open access (much as the publishers lobby reminded California legislators earlier this year). It is a reminder that any reform of this law will need to create an alternative to market exploitation for underwriting the publishing costs of research and scholarship.

Proposing copyright reform of this magnitude may seem entirely quixotic until you consider that the current widespread embrace of open access was regarded as no less fantastical a decade ago, when publishers unsuccessfully promoted U.S. legislation to prevent any form of government open access policies. Yet this acceptance in principle still faces a quagmire of practices, policies, and pricings (for open access article processing charges). Government and foundation open access policies have been negotiated with publishers, resulting in what are, in effect, copyright-workarounds that only cover publications derived from direct (as opposed to indirect) forms of taxpayer support. That portion of the research literature that is open, which for recent work is approaching fifty percent, is riddled with illegally-posted PDFs, (uncitable) final drafts, and deep-web scrapings, in addition to a small body of properly open access publications.

It does not appear that intellectual property law is serving the best interests of research and scholarship in the way that is arguably doing in many other intellectual property sectors (although not without controversy and other calls for reform). It could do more to promote the progress of science, I believe, through such measures as recognizing this body of work as a distinct property category. This category could include measures to ensure that its publishing costs are covered as a public responsibility by the funding bodies and research institutions that invest in the production of this research, while ensuring that this work is made immediately available to all on publication.

By this or a variety of other similarly intentioned means, we may yet be able to bring what might be regarded as the human right to this particular body of knowledge into the realm of intellectual property law. The tailoring intellectual property law in this way is no small undertaking, and I see much still to do, beyond this blog, in convincing people that such reform is worth giving serious consideration. But given what it could mean for the future of science, as well as the human right to know, it seem eminently worth the effort.

Comments

Some of this problem has grown out of the fact that scholarly and legal publishing was originally a low-profit enterprise, done in part to benefit its readers. We enthusiastically embraced pilpul to come up with a justification and a good enough margin for it to continue.

These days, legal publishing is a cash cow for its owners (full disclosure: Elsevier owned my former employer), as is scholarly publishing in general. As you note, we need a path from cow to something worthwhile in its own right.

My personal interests is in looseleafs, albeit done without actual paper, and I see a need for a profit-making operation to deliver legal writing to a community that also needs to bill for it.

Having critical information treated as a “cost center” and not part of one’s critical business (ie, as a “profit center”) is a risk of failure for the purchasers as well as the publisher.